Should Your Employees Telecommute? Part III

By: Paul Ebeltoft

10 Things Your Company Should Consider
(The final four.)

Despite its obvious attractions, telecommuting presents employers with a host of potential legal pitfalls. For the most part, traditional employment laws are no less applicable to the “virtual office” than to the traditional office. In the absence of careful planning, employers’ inability to closely monitor home-based employees and control their working environments can give rise to significant legal exposure.

Be wary of promises that a simple telecommuting policy supported by a simple side-agreement with your telecommuting employees will cover the liability bases. Successfully developing and implementing a compliant and optimally protective policy and employment contract is a significant project for HR professionals and their legal advisers, one which should not be undertaken without complete company buy-in to the concept of allowing or limiting work-from-home options.

This is the third in a series of three articles that will describe ten points to consider when your boss asks HR to help chart a course for your company.

7. ADA.

Although employees do not have an inherent right to telecommute, companies have to provide reasonable accommodations for workers with disabilities. The Equal Employment Opportunity Commission has opined that telecommuting is, in fact, a reasonable accommodation under the Americans with Disabilities Act (ADA), as long as the employee can perform the essential functions of the job and the accommodation will not cause the employer undue hardship. Consequently, a blanket rule against all telecommuting arrangements -- without exceptions to comply with the employer's obligations under the ADA and related state statutes -- may be subject to scrutiny.

On the other hand, providing an ADA exception to a policy denying all other telecommuting is itself not safe. When a company makes exceptions to a policy prohibiting work from home so it can stay in compliance with disability laws, they may be flirting with discrimination claims from the able-bodied. This tension between a general or a restricted policy helps to make telecommuting policies a difficult company – and HR – decision.

8. Evaluation

Job evaluations must be based on criteria specific to a particular job performed by a particular person. When objective criteria for evaluation is not available, how does one fairly evaluate an absent person? A white paper in the early days of telecommuting, in 1999, found this to be one of the most difficult challenges to overcome where criteria, such as numeric production or measurable quality indices, do not define the essential duties of the job.

9. Liability

A home office is still “your” office. Under the Occupational Safety and Health Act, employers are required to provide employees with a safe work environment, a requirement that applies equally to an employer facility and a home office. What happens if your home-office security check (see 3. from the July Article) misses something? Imagine if, after a safety and security review, a fire starting in the home office seriously injures one of your employee’s children. Should your telecommuting agreement provide for a special insurance policy covering general liability? If so, who will pay for the premium? In considering instituting telecommuting, remember the general rule: if, as a condition of employment, an employer exposes others to risks, even though the risks may be outside of the employer's control, injuries resulting from the risks can be compensable.

10. Cost of implementation

Most employers embark on a work-from-home plan as an employee perk. Many do not adequately assess the cost.

Virtually every company that has thoughtfully considered a compliant and protective work-from-home policy foresees substantially increased HR duties. Before a single employee is working from home, most immediately increase their HR personnel budgets so that HR can help create job-specific employment agreements, create means of tracking and evaluating time records, implement new ways to monitor and evaluate off-site employees, and create and deliver new supervisory training. Once employees start telecommuting, heftier IT budgets for new equipment and software purchases are generally needed, as are budgets for HR compliance monitoring. Finally, most thoughtful companies considering a work-from-home plan expect and quantify productivity losses as management employees spend more time wrangling off-site workers.

With out-of-pocket costs as daunting as the policy issues created, how much can your company pay for this employment benefit is a legitimate question to ask early in the process.

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My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at pebeltoft@eskgb.com We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the September, 2013 Southwest Area Human Resource Association newsletter.